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Smith v Kumaraiya [1995] FJHC 153; Hbc0309d.94s (11 October 1995)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. HBC 0309 OF 1994

BETWEEN:

ANTHONY ALWYN HARCOURT SMITH
of Avalon Beach, Sydney, Australia
Plaintiff

AND

KUMARAIYA, ENKATESU and NAGAIYA
also known as MERAIYA all of Nuku
Estate, Natewa Bay, Vanua Levu
Defendants

J. Howard for the Plaintiff
M. Raza for the Defendants

Date of Hearing: 11th October 1995
Date of Ruling: 11th October 1995

RULING

The Defendants apply for stay of execution on the order that I made in my Judgment in this case on the 20th of July 1995 that they immediately give vacant possession to the Plaintiff of land consisting of about 500 acres in the district of Natewa on the island of Vanua Levu. Other relevant facts are set out in my Judgment and I shall not repeat them here.

The application for a stay is supported by an affidavit sworn by one Nagaiya on the 10th of August 1995 in which among other things he says that he has appealed against my decision; that he and the other Defendants have been living on the subject land since or about 1924; that the Defendants live on the land with their wives and children and if they are removed from the land it will cause them enormous hardship.

Paragraph 10 of the affidavit states that the Plaintiff cannot deny that the Defendants are his tenants because "they had at one stage applied in the Agricultural Tribunal for re-assessment of the rent under the provisions of the Agricultural Landlord and Tenant Act".

This appears to refer to a copy application annexed to Nagaiya's affidavit made by Burns Philp Trustee Co. Ltd. as executor of the estate of Frank Harcourt Smith the present Plaintiff's father on 19th April 1984.

Paragraph 11 of Nagaiya's affidavit states that the application for increased rent was unsuccessful. No Notice of Appeal has yet been lodged in the Court of Appeal Registry but five proposed grounds are listed in the copy Notice of Appeal exhibited to Nagaiya's affidavit.

Ground one alleges that I erred in law in not staying or adjourning the Plaintiff's Summons until the hearing of an application by the Defendants to the Agricultural Landlord and Tenant Tribunal after the Summons was issued on the 23rd of June 1994.

Grounds three and four allege that I misdirected myself as to the provisions of the Agricultural Landlord and Tenant Act in holding that the Defendants were not tenants under that Act because no declaration of tenancy was made or granted by the Tribunal.

Ground five alleges that I erred in law in holding that the Plaintiff's Notice to Quit did not require to comply with Section 37(1) of the Agricultural Landlord and Tenant Act.

With all respect to Mr. Raza who appears for the Defendants I have heard nothing which persuades me to grant the stay requested. For reasons which I gave on pages 4 and 5 of my Judgment I still cannot accept that the Defendants are tenants within the meaning of the Agricultural Landlord and Tenant Act Cap. 270 because it is not disputed that no declaration of tenancy has been made under Section 5(i) of that Act. Further it is also not disputed that there is no instrument or contract of tenancy under Section 8(1) of the Act and the Defendants have not applied to the Tribunal for relief against eviction.

I am still of the view expressed in my Judgment that the Notice to Quit in this matter was not issued pursuant to Section 37(1) of the Act nor was it required to be. It was clearly issued under the ordinary common law.

Counsel for the Defendants stated that the case of Azmat Ali v. Mohammed Jalil (1982) 28 FLR 31 was crucial to the Defendants' case. I rejected this argument in the original hearing and the argument that the following case in 28 FLR Dharam Lingam Reddy v. Pon Samy Reddy & Veliamma at page 69 could also assist the Defendants.

I shall not repeat here my reasons for rejecting the Defendants' argument that these two cases help them.

Counsel for the Defendants submitted that the mere fact that the Defendants had applied to the Agricultural Landlord and Tenant Tribunal for relief was sufficient reason for granting them a stay pending any Appeal to the Court of Appeal. When I invited Mr. Raza to refer me to any section of the Agricultural Landlord and Tenant Act which supported such a claim he could only refer me to Section 37(1). In my Judgment I rejected the Defendants' argument based on Section 37(1) and I see no reason now to change or qualify the reasons I gave in my Judgment.

It is undoubtedly true as the Court of Appeal said in Azmat Ali's case that the Tribunals under the Agricultural Landlord and Tenant Act are unique in that they have special powers not normally found in land law. Some of these are mentioned on page 36 of the report. However I can find nothing in the Act, nor could Mr. Raza refer me to anything, by which the Act in any way qualifies or rejects the basic principle of land law that any tenant must pay rent. I said on page 5 of my Judgment that it is implicit in the Agricultural Landlord and Tenant Act that for a tenancy to exist a person must be lawfully holding land under a contract of tenancy and paying rent. The Defendants do not dispute that they have not made any such payments since at least December 1991.

Mr. Raza stated that the Defendants were prepared to pay rent at any time and asked me to give one month's adjournment to enable them to do this.

In the light of their history I cannot give any credence to any proposal the Defendants might make to pay the arrears of rent. I am satisfied that they have had more than enough time to do so.

It is a golden principle of the law that any successful litigant is entitled to the fruits of his judgment. I see no reason why the Plaintiff should be so deprived in this case. The Defendants claim that they would suffer hardship if I refused the stay but the mere assertion of this is not sufficient. Furthermore no Notice of Appeal has yet been lodged.

For these reasons I reject the Defendants' application for stay but I make no order for costs.

JOHN E. BYRNE
JUDGE

HBC0309D.94S